I have agreed to be named on a website promoting a court challenge to Auckland Mayor Phil Goff. He has claimed the power to decide which political views can be discussed in Auckland public halls.

If the Mayor of Auckland has that power it is no local matter. With it he could deny nearly half the population of New Zealand a practical chance to see and to assess for themselves any speaker the Mayor decided they should not be free to judge. He may claim he has that power to ban things he sees as inimical to the “social” or “cultural” health of his subjects.

The law deliberately gave the Auckland Mayor presidential authority plus a Council with limited power to control him. But even if the Councillors had normal council powers over Council officers and the Mayor, a Council should not have the power to stop people from meeting in public halls to hear and judge unpopular speakers.

The long established legal boundaries on freedom of expression are all the “protection” Councillors should be allowed to assert. Public authorities at both central and local government level should now be scrupulously secular and politically neutral in their stewardship of public assets.

The bitter struggle to win freedom of religion, thought and expression was marked by majority tyranny.

Local oppression can be the most insidious, because local power is pervasive. “You can’t beat City hall”. Coercive local governments can make it costly in daily life and business to dissent from dominant beliefs. Local oligarchs can ignore fundamental rights and freedoms when common law protections are too expensive to enforce. And they can often ignore the intentions of law. Consider, for example, how helpless central government has been against Christchurch and Auckland planners who have the backing of elderly voters who like the status quo in their leafy suburbs. They’ve blocked densification to shut young families off the housing ladder.

I’ve been concerned about the risks to our democracy at local level for many years, long before Auckland lost its genuinely local government into the UberCity. In 2002 the Local Government Act removed centuries-old constraints on the power of local politicians. They were given the incredibly vague freedom to pursue the four “well beings”. They can claim to be advancing their community’s cultural or social well being, to boss their neighbours around in ways that even central government would not dare to do.

I was concerned they would abuse their new power to enforce dominant orthodoxies. So, with Nandor Tanczos (Green) support, I moved the insertion of s 155 (3) of the Local Government Act 2002. Unexpectedly we succeeded. It reads:

That was as far as we could get then in subordinating local government to NZBORA (though NZBORA is expressly not binding on central government). It is limited but I am proud of it. And now we must ask a court to make it clear that the principles recorded in NZBORA are fundamental elements of our rule of law, as a constraint on the non-bylaw decrees of local lords.

I mentioned in the Parliamentary debate in 2002 some historical attempts by local councils to suppress the Salvation Army in its early years. At the urging of publicans and established churches they passed bylaws against band music in public places and noisy gatherings in streets. Among other reasons the Salvation Army had to attract support in the streets was that they were banned from hiring public halls.

I am inspired by the American Civil Liberties Union. Over the years after the McCarthy hysteria they went to court to stop local authorities from banning speakers and gatherings of Communists and Nazis and apartheid era sports teams, from public property. They argued consistently that it was too dangerous to freedom of communication to give those in power the right to decide what was desirable or undesirable. Because it would end up being used by the powerful (and majorities) to block challenging ideas. But also because it would prevent ordinary citizens hearing wrong talk for themselves and learning how bad or ugly it was.

Freedom of assembly and speech may be even more important now, in the era of social media echo-chambers and bubbles. Most political and religious discourse is now in soundbite abbreviations. Many political debates never reach the public, except as a species of comedy, lampooned by ignorant scoffers in media programmes that specialise in mockery. There is little chance for people to get the kind of sustained sequential argument and discussion that happens at public meetings.

Mr Goff, somewhat ludicrously, said he will not allow divisive speech. He wants speech for unity. What about diversity Mr Goff. Have you turned your back on that? What do you seek from it? All thinking and speaking in unison? If our society has become so fragile it can’t handle awkward or unsettling speech or challenge, then it may be because young people have had too little practice.

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Comments

If this assault on speech is not challenged now then we are headed where UK and Sweden are now – Orwellian states incarcerating folk for expressing an opinion

TrevorH

July 10th, 2018

9:21 am

Dear Stephen

Thank you for defending our freedoms. I have contributed to the Fighting Fund in support of the court challenge. In what other ways can we assist?

Catharine Franks

July 10th, 2018

12:49 pm

Well written. Proud of you.

Roger Barton

July 12th, 2018

10:25 am

Phil Goff must have forgotten his ability to excercise his rights in the early 1970s as he protested the returning of Vietnam vets. So it was OK to spit on people then who had fought for a cause but now it’s different?
Shame on Goff and all power to the collective fighting for freedom of speech.
Who would ever have thought that NZ would get to this state!
Thanks Steve for your sane input…at many levels.

[…] Stephen Franks calls Goff’s actions in denying the speakers the right to use council-owned venues a partisan abuse of political power: […]

Barry Brill

July 19th, 2018

1:29 pm

If Auckland public spaces are to be denied to any whose views “divide rather than unite”, the Council’s Maori Statutory Board may have to hold its meetings in Hamilton.

Alistair gates

July 23rd, 2018

12:41 am

Let?s not forget Goff has just cost Auckland holiday home owners another $2000 to $6000 dollars extra in rates per year due to the non negotiable accommodation tax and newly implemented business council rates for Airbnb hosts. I would say that was quite devisive.

Hilary Taylor

July 23rd, 2018

3:04 pm

SUCH a good piece Stephen. I put my (meagre)money where my mouth is the minute I learned of the coalition’s fund-raiser. This is a disgraceful piece of censorship that I find quite unbelievable from Mayor Goff, given his history. Don’t tell me what I can hear Phil… ‘Mad as hell & not gonna take it!’

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